Chapter 13
The Death Penalty
The Death Penalty
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History of capital punishment
Trends in its use, methods of execution
Impact and meaning of Furman and Gregg
Processes for imposing death and appeals
Juveniles, the retarded and insane
Death-row populations and routines
Moral and utilitarian arguments
Early History
• Begins with empires’ need to control
soldiers, slaves, conquered peoples
• Religious crimes were main target under
early church
• English use rose until 1800s
• Symbol of tyranny in early United States
– First banned by Michigan in 1846
• Used mainly in South against slaves
Public Executions
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Executions were a major attraction
Riotous crowds often a problem
1835 – New York moves hangings into prison
1890 – New York introduces electric chair
1936 – last public execution, a hanging in KY,
20,000 attended
Modern Executions
• Texas leads nation in use of death penalty
• Southern states tend to use penalty most
• Least popular in northeast, northern
Midwest
• Murder rates population not closely linked
to use of penalty
Race and U.S. Executions
• Over 90% of those executed for rape and
burglary (prior to 1996) were minorities
• Blacks executed much more often and at
younger ages, especially in South
• Prosecutors and juries biased in use of
penalty
• Lynchings and executions peaked in 1930s;
Klan control of C.J. common
Furman v. Georgia, 1972
• Ruled that death penalty laws were “arbitrary
and capricious”
• This permitted racial bias and undermined
deterrent justification
– First time social science accepted by Supreme Court
• Informal moratorium from 1967 to 1972
• Commutations for death row inmates
• States re-wrote laws to comply with Furman
Gregg v. Georgia, 1976
• Upheld Georgia’s new statute
• New laws describes specific aggravating
factors that justified execution
• Murder, air piracy, treason, aggravated
kidnapping and rape of child now listed as
capital offenses
• Only use since Gregg has been in murder
cases
Further Case Law
• Woodson v. NC, 1976: Mandatory execution
for first-degree murder too broad
• Coker v. GA, 1977: Death too severe for
non-fatal rape of adults
• Godfrey v. GA, 1980: Vague phrases like
“depravity of mind” insufficient criteria
Trial Processes
• Post Furman rulings favor bifurcated
trial process
• Separate guilt and penalty phases
• Penalty phase requires jury examine
aggravating and mitigating factors
• Jurors beliefs about death critical
• Penalty phase relies on experts whose
personal beliefs can cloud testimony
Methods of Execution
Method
Lethal injection
Electrocution
Gas chamber
Hanging
Firing squad
States
Executions
36 + U.S.
580
10
149
5
11
3
3
2
2
Sentencing Issues
• Most states require future dangerousness,
causal factors, crime circumstances and
potential for reform be examined
• Simmons v. SC, 1994 and Shafer v. SC, 2001:
If dangerousness is core concern and life is
only alternative, then jury must know that
parole is not permitted
• Ring v. Arizona, 2002: Only juries can impose
death, judicial control in five states overturned
• Automatic review by state’s highest court
Death Penalty Appeals
• Limits desired to control costs and speed
up process
• Average of eight years from conviction to
execution in 1998
• McClesky v. Zant, 1991:
Limits defendants to one habeas corpus
appeal that examines ALL issues related
to trial and sentence
Death Sentences, 1977-2001
Executions, 1977-2002
ADEPA
• Anti-Terrorism and Efficient Death Penalty Act
– One year after sentence permitted to assemble and
file appeals
– 180 days if state assures competent counsel
• Expected to speed process between conviction
and execution
The Innocence Issue
• High rate of indigence creates competency of
(defense) counsel issues that disturb federal
courts
• Reversible errors, correctable legal mistakes in
a trial, found in 70% of capital trials
• Penalty supporters feel this reflects conflict of
pro-death juries, judges with anti-death
appellate courts
• Over 100 men freed from 22 death rows on
DNA evidence, 70+ on other types of evidence
Costs
• Most place average cost of trial and execution
processes at over $2 million
• This is more than 40+ years in prison
• Local governments pay with taxes, police and
road funds
• Capital punishment usually estimated to be 3
times more expensive than life-without-parole
• Costs due to larger number of motions,
lawyers, experts, lengthier trial, complex jury
arrangements, and so on
Insanity and the Death Penalty
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Insanity noted after trial raises most issues
Ford v. Wainwright, 1985: Inmate must be
sane enough to understand:
1) That they have been sentenced to death
2) Why they were sentenced to die
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Deterrent value of execution presumes
rationality per common law
Insane protected as a class, can be executed
after sanity is restored – an ethical problem
for doctors
The Mentally Retarded
• Series of trials regarding Penry forced
presentations on retardation as mitigating
factor between 1989 and 2001
• Atkins v. Va, 2002: 8th amendment and
basic dignity principles of the classical
school were violated by executions of
retarded
Juveniles and Capital Punishment
• Persons who committed crime before age
16 cannot be executed unless state law
specifies eligibility (16 a “default” age)
• Five states set age at 17, sixteen others and
federal government specify age 18
• 82 males await death for acts committed as
juveniles
• Seven nations permit execution of juveniles
Technical Problems
with Executions
• Electrocution most problematic when voltage
fails and must be rewired
• Lethal injection requires getting needles into
veins
– Problems with IV drug users,
– Violent reactions to drugs noted
• Use of medical procedures violates medical
ethics, physician involvement challenged
• Inability to display pain due to drugs masks
reality, reduces just deserts/retributive value
Arguments for the Death Penalty
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Deterrence
Justice/retribution
Boundary setting
Victims’ families
Deterrence and the Death Penalty
• Increase in murders during moratorium
• Ignores changes in norms, view of police,
handgun availability
• Erlich Study (pre-Furman era data)
– Claimed each execution saved up to eight lives
– Presumed that all executions had equal
deterrent value throughout nation
Deterrence and the Death Penalty
• Layson and Cameron: Execution predicts
deterrence but not as well as probability of
arrest, conviction
• Fears of further murders by death inmates
not validated by studies of Furman
commutees
• These offenders no more or less violent than
other violent offenders
Justice and Retribution
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Symbolic, boundary setting value stressed
Emotional relief for some victim’s families
Other families object
Using survivors’ wishes problematic under
justice model reasoning
• Presumes fairness of police and judicial
processes
Arguments against
the Death Penalty
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Morality
Economics
Brutalization thesis
Discrimination
International reputation of United States
Morality of the Death penalty
• Presumes that as a society grows more
civilized, its use of violence decreases
• State sanctioned violence especially
important
• Questions morality of “vengeance”
(retribution)
Brutalization Thesis
• The more violence one is exposed to, the more
likely they are to approve its extra-legal use
• Potential killers identify with state, use
execution to justify their crimes, seek fame
• Some studies show increased murder rate
follows executions
• Differences between acquaintance and
strangers killings
Discrimination Issues
• Quality of counsel a major predictor of
which killers receive death sentence
• Wealth predicts type and quality of counsel
• Post-Furman era studies
1. Race of those executed shows no racial bias
2. Race of victim suggests white lives more
valued by sentencing courts
Factors Predicting
Use of Death Penalty
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Murder with torture
Future risk to others
Black defendant
Caused great harm
Multiple stab wounds
Felony murder
1.9
1.5
1.4
1.0
0.9
0.8
Race of Victims of Death Row
Inmates Since 1977
Race of Death Row Inmates
Since 1977
Public Beliefs and Death Penalty
• “Evolving standards of decency” guide
legality of punishments
• 75%+ of public believes deterrence has
been scientifically proven
• 90% + of criminologists, police chiefs
take opposite view
• Poll results vary with wording of
question on death penalty
Public Beliefs and Death Penalty
• Race and religion are major predictors of
support for death penalty
• Pro-life citizens most likely to support it
• International data shows public opinion
about capital punishment is unrelated to
murder, crime rate